May 4, 2013

Written by

David Eggert

Associated Press

Almost five years have passed since a study showed poor criminal defendants are routinely processed through Michigan's justice system without ever speaking to an attorney in violation of the Constitution.

It has been nearly a year since a group appointed by Gov. Rick Snyder recommended fixes, including creation of state standards so counties are forced to bring legal aid up to par.

Now advocates and counties are cautiously optimistic that lawmakers could send the governor a plan after one stalled last year in the Republican-led Senate. In the backdrop is a 6-year-old lawsuit — still pending — that was filed against the state on behalf of defendants in Berrien, Muskegon and Genesee counties.

"The biggest exposure for the state of Michigan is they offloaded this to the counties without any sort of system to make sure that counties are doing it right," said David Carroll, executive director of the Sixth Amendment Center, a Boston-based group working to improve indigent defense. "If they can't guarantee that the counties are doing it, the states are liable."

Legislation being considered in House and Senate committees last week and this week would create an independent, permanent state commission to establish standards ensuring effective counsel is given to low-income defendants. Lawyers' ability, training and experience would have to match the nature and complexity of the case assigned, for example.

Instead of having full-time public defender offices, many counties now control costs with low-bid, flat-fee contracts in which appointed attorneys accept cases for a predetermined fee. That causes a conflict of interest between their duty to competently defend their clients and a financial self-interest to invest less time on cases to maximize profits, according to a 2008 report commissioned by the Legislature.

Under the bills, lawyers' workloads would be better controlled, and financial incentives or disincentives leading attorneys to short-change defendants "shall be avoided."

Local governments would have to fund indigent defense at the average level spent in the three years before the creation of the commission. The state would cover new costs for counties to improve their public defense systems. Michigan is among just seven states to provide no state funding for trial-level public defense services, according to the Michigan Campaign for Justice, a group supporting the legislation.

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The lead sponsors are Republicans, including one of the most conservative in the Capitol.

"We have people who are sent to jail who are innocent or sentenced to longer terms because they were not represented properly. Keep in mind that we also pay $30,000-plus every year for each innocent person to be in prison," said Rep. Tom McMillin, R-Rochester Hills.

Carroll said many people think of the push for better indigent defense as a liberal cause, but in other states making changes, it was often Republicans leading the effort.

"This is a tyranny issue. ... You can't throw me in jail without due process. I think that's where we see traditional Republicans really latching on to this. We don't want big government taking people's liberty unfairly," he said.

McMillin's bill won approval from the GOP-led House last year only to die in the Senate. Since then, changes have been made to address counties' concerns about having to pay more for indigent defense, to shield governments from lawsuits for failing to comply with state standards and to prohibit convictions from being overturned if the new rules are violated.

Ben Bodkin, legislative affairs director for the Michigan Association of Counties, said the group's biggest remaining concern with the legislation is it would let the state take over a county's public defense system if a county runs afoul of the new commission and require that county to continue paying its costs along with part of the state's bill. Counties want a third party — such as the state appeals court — to resolve disputes between the state and counties instead of a mediator because they worry the state could have too much power.

"It's not like we have a lot of money lying around. We're charged with protecting the taxpayer dollar at the local level, too," Bodkin said.

Advocates pushing for changes in Michigan estimate 83 counties spent about $75 million to $80 million in 2009 on criminal defense for the poor, ranking 44th-lowest nationally.

Sen. Rick Jones, R-Grand Ledge, who helped block the legislation last year, said he has been told the state itself could spend $50 million annually within five years if the measure is approved. The former sheriff is skeptical that widespread improvements are needed to counties' public defense systems, but said a deal may be close.

"I would speculate that if I can get the counties onboard and satisfied that it's a fair program, it will be signed into law," Jones said.